As the technology grows in complexity, making it more difficult to spot fakes, attorneys and judges will have to decide how to manage deepfake evidence and authenticate it, says Riana Pfefferkorn, associate director of surveillance and cybersecurity at the Center for Internet and Society at Stanford Law School. She warns that deepfakes could erode trust in the justice system.

“My worry is that juries may be primed to come into the courtroom and be less ready to believe what they see and believe what they hear and will be more susceptible to claims that something is fake or not,”

In the past decade, the courts have ruled several times on procedures for authenticating digital evidence, Pfefferkorn says.

Pfefferkorn says courts have shown that they can be “robust against generations and generations of fakes.” The photo-editing software Adobe Photoshop has been around for decades, and long before deepfakes, courts have handled everything from forgeries to doctored photocopies, she says.

“As long as there’s been evidence in court, there’s always been fakes, and the courts have come up with rules to deal with those as they come up, and are aware that there’s always the possibility that somebody is trying to hoodwink them,” Pfefferkorn says.

In an article for the Washington State Bar Association, Pfefferkorn recommends attorneys prepare for deepfake evidence by budgeting for digital forensic experts and witnesses. She says lawyers should know enough about deepfake technology to be able to spot outward signs that the evidence has been tampered with. There are ethical concerns if a client is pushing an attorney to use suspect evidence, she adds.

“You might still need to do your homework and do your due diligence with respect to the evidence that your client brings to you before you bring it to court,” Pfefferkorn says. “If it’s a smoking gun that seems too good to be true, maybe it is.”

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